By : SMT. BANDANA ROY, PRESIDENT

            The short facts of the case is that the OP is a developer and started a residential project of flat at moua Chakkamina under Tamluk PS. The complainant wanted to purchase one of the flats. Accordingly the complainant made an agreement with the OP on 4^th Mach, 2016 to purchase a flat on 3^rd floor at the south side of the apartment having a total area of 715 Sq. feet.  Further, by another agreement  it was agreed that the OP shall give a garage for Rs. 1,70,000/- to the complainant.  But at the time of authentication of the agreement before the Notary Public on 04.03.2016, the OP intentionally did not mention the delivery of garage. So the complainant did not sign the agreement  and requested the OP for a fresh agreement mentioning the delivery of the garage. Before the agreement, on 04.03.2016 the complainant paid Rs. 6,00,000/- to the OP by cheque No. 533652, drawn on SBI Haldia Refinary Branch and the value for the flat was fixed at Rs. 2,300/- per Sq. ft. . The OP promised to hand over the flat by two years from 04.03.2016 but according to the agreement being No. 6260/16 the OP did not take or demand any installment of amount from the complainant. On 12.09.2017 the complainant gave an advocate’s letter to the OP to accept the agreement amount within seven days from receipt thereof. The Op gave a false reply on 22.09.2017.  Again the complainant in writing on 09.10.2017 requested the OP to take rest amount with a promise to give the garage, but the OP refused to take the said letter on 21.10.2017.  Thereafter the OP did not make any further correspondence with the complainant.

Hence, the instant case with the prayers for a direction upon the OP to accept the balance amount without any interest and to hand over the garage, compensation and litigation cost.

The OP contested the complaint by filing Written Version and contended that the instant  case has been filed out of shear personal grudge and to receive unlawful gain by misrepresenting the facts and suppressing the truth  which is liable to be dismissed with cost.

The specific defense of the OP Nataraj Samui is that initial rate of the flat was fixed at Rs. 2500/- per Sq. ft.  But during agreement the complainant started strong negotiation and reduced the rate at R.s 2300/- per sq. ft.  The complainant paid Rs. 600000/- as 30% of the total value of the flat. Thereafter the complainant did not pay any further amount which tantamount to breach of contract; he also caused a serious and grave financial loss to the OP Firm. The complainant subsequently expressed his inability to buy the flat and returned back the agreement and also asked to return him back 50% of the money paid by him. The complainant also started demanding a garage at an absurd value of Rs. 1,70,000/-. The OP humbly expressed their inability to provide with the garage and also stated that if the complainant intended to take the garage he would have to pay the rate as would be fixed by the developer- OP. For such negligent attitude of the complainant in not taking the flat, as pr agreement, the OP had to suffer loss of Rs. 4,50,000/- in total till date and  he  stressed that if the complainant desires to take back the money he paid,  the OP is ready to pay  the same  after deducting 50% thereof.

 On the basis of the above pleadings of all the parties, the points require discussion are whether the case is maintainable and whether the complainant is entitled to get the reliefs  as prayed for.

Decision with reasons

            Both the points are taken up together for consideration for the sake of convenience.

            We have carefully perused the affidavit of the complainant, the written version of the OPs and all the documents filed by both the parties, the examination- in- chief on affidavit, questionnaires of both parties and also reply thereto filed by the parties, heard the submission of the ld advocate for the complainant as also the OPs. Also perused the rulings cited by the Ld. Advocate for the parties. Considered.

            Admittedly there is no signature of both the parties in the agreement filed by the complainant but as per  paragraph 13 of the written version  the OP is a Partnership Form  and in due lawful process took  approach to built a residential flat  at Mouza Chak Kamina under PS Tamluk JL no .l 284 RS plot no. 157 measuring an area of 06.284 decimals as developers. The complainant came and choose a flat  in the 3^rd floor  comprising an area of 715 Sq. Ft being Flat No6 with two bed rooms, one dining, one kitchen, two toilets and one balcony which  is admittedly mentioned  in page 3  of the agreement for sale dated 04.03.2016. This agreement was sworn before the Notary Public and the Notarial registration No was 6260 dated 04.03.2016.

            It appears that though there is no agreement there is no signature of both the parties but  in the written version the OP has admitted that there is an agreement. The OP alleged that there was no mention of any garage, to be provided to the complainant at the time of execution of the agreement and also the complainant did not opt for any garage  at the time of entering into the agreement for sale, but subsequently the complainant started insisting upon  a garage and that too by an absurd rate of Rs 1,70,000/-. The OP also admitted that he took Rs. 600000/- as a part payment for sale of the flat at the time of entering into the agreement for sale on 04.03.2016. The complainant has stated he returned the original agreement  to the OP for insertion of the garage but the OP did not return the said agreement to the complainant.  But the OP has stated that the complainant subsequently expressed his inability to buy the flat and so he wanted to return the agreement to the OP and asked to refund back 50%  of the money given by him as as per the provision of para 4 of the agreement in question

            We have perused the  copy of the agreement filed by the complainant very carefully. 

            It is the burden of the complainant to prove that there was any provision for a garage with the flat  in the agreement. But from the copy  of the agreement there is no whisper of any garage  at any point of time. The complainant failed to prove  by cogent evidence that there was talk of providing any garage with the flat at the time of entering into the agreement.  It is quite impossible  to presume  that a garage is a part and parcel of a flat.

            In the schedule of the agreement  the mode of payment has been prescribed in details as hereunder :

1. Booking and agreement                 Rs. 6 lacs,
2. On foundation Up to plinth level           15%
3. After ground floor slab casting              15%
4. After 1^st floor slab casting                                 15%
5. After 2nd floor slab casting                   15%
6. After  3rd floor slab casting                   15%
7. After 4th floor slab casting                    15%
8. On finishing                                                 5%
9. At the time of sale Deed Registration.   5%.

According to the said schedule there is also no whisper of the garage.

By question No. 2 the complainant was asked “Can you produce any single piece of document / agreement/notes in support of your contention to the effect that there was any agreement/terms regarding any garage at any point of time, the complainant replied “There was oral agreement”.

There is no case of oral agreement, made by the complainant in thefour corner of the complaint as well as in the schedule of the agreement.

OP also filed examination in chiefwhere the OP deniedthat there was any terms in the agreement for providing any garage to the complainant along with the flat. OP did not deny that the complainant paid Rs. 6 lacs at the time of the entering into the agreement for purchasing the flat.

The Ld advocate for the complainant has cited various decisions reported ion 2018 (3) CPR 405 (NC), in support of return of the amount paidby the party if he fails to pay the remaining amount after booking the flat. Builder cannot forfeit the amount and terminate the allotment letter. He also cite a decisionreported in 2018 (I) CPR 764 (NC)where it has been held that it is wellestablished principlethat even if the complainant had failed to deposit further amount with the OP Builder the later had no right to forfeitthe amount deposit. From both these decisions it appears that the complainant is entitled to get back the money he paid at the time of booking say Rs. 6,00,000/-.

The complainant has prayed for directing the OP Builderto take the rest amount as per calculation without anyinterestand to hand over said flat with garage to the complainant; compensation of Rs. 50,000/- for unfair trade practiceand mental agony created upon the complainantand litigation cost ofRs 20,000/-.

But from the above discussion it has been well established that the OP had no deficiency of service or unfair trade practice on his part. So the complaint case is liable to be dismissed.

But in view of the aforesaid decisions thecomplainant is entitled to get back only the moneyi,e Rs. 6,00,000/-which he paid at the time of entering into the agreement.The OP should take efforts to pay back said amount of Rs. 6,00,000/-within a reasonable period.

Both the points are thus answered accordingly.

In the result the case fails.

            Hence, it is

O R D E R E D

That CC/62  of 2018 be and the same is dismissed on contest against the OP.

Parties do bear their respective costs.

Let copy of the judgment be supplied to all the parties free of cost.

Sd/-                                                                          Sd/-

Chandrima Chakroborty                                          Bandana Roy

Member                                                                   President